IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 30099 of 2006(G)
1. APPU PILLAI, S/O.MALAKKARA KALYANI AMMA,
... Petitioner
2. JANAKI AMMA, D/O.PUNATHARA LAKSHMI AMMA
3. RAMANKUTTY, S/O.APPU PILLAI,
Vs
1. SUBRAMANIAN,
... Respondent
2. UNNIKRISHNAN, S/O.VALIYAPARAMBIL
3. SADANANDAN, S/O.VALIYAPARAMBIL
4. PURUSHOTHAMAN,
5. PRATHAPAN,
6. PREMAN, S/O.VALIYAPARAMBIL RAMANKUNJI,
7. VISWANATHAN, S/O. VALIYAPARAMBIL
For Petitioner :SRI.T.H.ABDUL AZEEZ
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :15/11/2006
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.C.NO.30099 OF 2006 (G)
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Dated this the 15 th day of November, 2006.
JUDGMENT
Petitioners are defendants in O.S.562/06. Respondents are plaintiffs.
Respondents filed I.A.1083/03, an application under order XXXIX Rule 1 of
code of civil procedure for an order of temporary injunction. Learned Munsiff
granted an ex-parte order of temporary injunction. But later on the failure of
respondents, to comply with the mandatory provisions of Rule 3 of order
XXXIX, the ex-parte order of injunction was vacated and petition was posted
for hearing along with the suit. There after the parties were heard and
under Ext.P4 order, learned Munsiff granted an order of temporary injunction
in favour of the defendants. It is challenged in this petition filed under Article
227 of Constitution of India.
2. Contention of petitioners is that as the court has vacated the
order of injunction for non-compliance of the mandatory provisions of Order
XXXIX Rule 3 of code of civil procedure, learned Munsiff should not have
subsequently passed an order in favour of the respondents and the order is
therefore to be quashed. On hearing learned counsel appearing for
petitioner and going through Ext.P3 and P4 orders I do not find any reason to
interfere with Ext.P4 order in exercise of the extra ordinary jurisdiction of this
court, under Article 227 of Constitution of India.
W.P.C.NO.30099 OF 2006 (G)
2
3. Learned Munsiff originally granted an ex-parte order of
temporary injunction. Later for the failure to comply with the conditions
provided under Rule 3, the ex-parte order of injunction was vacated. That
does not mean that, if respondents could establish a prima facie case and
irreparable injury and balance of convenience, they are not entitled to get an
order of temporary injunction on merits. I.A.1083/03 was not dismissed
when the ex-parte order of injunction was vacated. Court below there after
heard the parties and passed Ext.P4 order. Ext.P4 order is an appealable
order as provided under Order XXXIX Rule 3 of code of civil procedure. The
remedy of the petitioner is to challenge the order in appeal as provided under
Order XXXXIII Rule 1 of code of civil procedure.
Writ Petition dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE.
bkn